New Delhi: The Modi government has written to the Supreme Court four times in the last seven years, asking it to redraft the Memorandum of Procedure (MoP) to bring in more transparency in the selection process of judges. However, ThePrint has learned that the apex court has replied to only one letter so far.
The MoP is a rulebook followed by the judiciary and the government for the appointment of judges to the Supreme Court and High Courts. It has been at the center of a controversy over the years, with the central government claiming that the appointment process prescribed in it gives primacy to the “opaque” collegium system.
The contentious point in all these letters, including the most recent one sent by Union Law Minister Kiren Rijiju in January this year, is the apex court’s December 2015 order in which a five-judge bench asked the central government to finalize the MoP. asked for. In this, additional guidelines have been given to bring more transparency in appointments., In consultation with the Chief Justice of India (CJI).
Rijiju’s letter expressed concern over the manner in which the apex court has not dealt with the issue of appointments on the administrative side, but has escalated it through judicial intervention. “It does not appear to be appropriate and justifiable, while the matter is pending on the administrative side, to pursue judicial intervention on the issues that may arise in such undecided matters,” the letter said.
ThePrint has accessed all the letters written by the government between 2016 and 2023.
Supreme Court’s December 2015 order was a follow-up to the October 2015 order Decision, which hit out at the National Judicial Appointments Commission (NJAC). A five-judge bench ruled by a 4:1 majority that the NJAC was “unconstitutional” and violated the “basic structure of the Constitution”.
The NJAC Act, passed by Parliament in 2014, seeks to replace the collegium system of appointing judges with the NJAC allowing the government a say in matters.
Running into 1,000 pages, the majority opinion of the 2015 judgment was authored by former Chief Justice of India, Justice JS Khehar, who was assisted by Justice Madan B. Lokur, chairing the bench with separate concurring opinion authored by Kurian Joseph and AK Goel. Justice J Chelameswar was the sole dissenter of the Bench.
After this decision, the bench deliberated in open court and finally left the task of amending the MoP to the central government. The December 2015 order also stated that the CJI’s decision on revising the MoP would be based on the unanimous view of the collegium comprising the four senior-most judges next to him.
Subsequently, after due diligence, the government sent the draft MoP to the then CJI in August 2016. The then CJI Justice Khehar had sent its reply in March 2017. In reply, Justice Khehar referred to the extensive discussions he had with his collegium members on the suggestions made by the government.
After due consideration, the Collegium accepted minor modifications in the MoP. However, the letter specifically mentioned that “those not included in the MoP, and changes that may be necessary in future, will be considered later”.
MoP amended
According to sources in the know of developments, in 2017 two minor amendments were made to the MoP with regard to the appointment of lawyers as judges. The amended MoP introduced two criteria for the selection of candidates from the legal fraternity for HC judgeship. Firstly, the age of an advocate should be between 45 to 55 years and secondly, the average net annual professional income of the advocate for the last five years should be Rs 7 lakh and above.,
“The March 2017 letter did not close the possibility of further deliberations on amendments to the MoP. Rather, it allowed the government to raise the issue in future,” said one of the sources cited above.
For the second time, the government approached the apex court in July 2017. Soon after, two judges highlighted the need to revisit the process of appointing judges to constitutional courts. Justice (since retired) Chelameswar and former CJI Ranjan Gogoi made the comments while being part of a seven-judge bench hearing contempt proceedings against an HC judge, Justice CS Karnan,
In a letter to the apex court’s registrar general in July 2017, the then Union law minister Ravi Shankar Prasad had called for the creation of an institutional mechanism, which he said would “meet the norms of due process for evaluation and transparency”. as mandated in the Act. Supreme Court judgment (of December 2015)”.
Shankar said the need for a robust evaluation process by setting up an evaluation committee was further reinforced by the apex court in its judgment in the Karnan case.
It was also stated that, though the apex court had set up a secretariat, it was limited to maintaining only a database relating to the records of the district judiciary.
Such an arrangement, the letter added, would not contribute meaningfully in any way to assist the Collegium in identifying all eligible candidates. There was no response to this letter from the apex court.
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recruitment system needs to be reformed
Meanwhile, on the judicial side, the Supreme Court continued to pronounce orders on appointments. In March 2018, a two-judge bench of Justices AK Goel and UU Lalit (who retired as CJI last year) brought out shortcomings in the system and stressed the need for reforms in the appointment process.
Later, in April 2021, a three-judge bench set additional timelines with respect to the time taken by the government in processing the collegium’s proposal and also in the matter of appointment of retired judges.
This prompted the government to once again prepare draft guidelines to supplement the existing MoP in line with the December 2015 decision. Sources told ThePrint that there has been no response from the Supreme Court on this communication as well.
Rijiju’s latest letter has reiterated the need for a search-cum-evaluation committee and a structured secretariat to complement the MoP. “Selective application of certain parameters laid down through judicial pronouncements, which have not yet been agreed upon in the administrative process of appointment of judges in constitutional courts, can be a selective piecemeal complement to the MOP,” the letter said.
(Editing by Richa Mishra)